Ag in the Courtroom
John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.
Vermont House of Representatives Passes GMO Labeling Bill
May 10, 2013
As expected, the Vermont House of Representatives approved a measure that will require certain foods containing genetically-modified ingredients sold in the state to have labels indicating the presence of GM material. The legislation passed the House on a vote of 107-37. Because the legislation was passed late in the session, the Vermont Senate will not have an opportunity to vote on the measure until 2014.
The law exempts labeling for alcoholic beverages as well as products derived from animals, such as meat or cheese. As we all know, the great state of Vermont will not apologize for its cheese.
The Vermont measure is one of a handful of labeling proposals that are being considered in state legislatures and statewide ballot initiatives. There have also been bills proposed in the U.S. Senate and House of Representatives that would require labeling across the United States. However, observers have noted that it is unlikely that a federal GMO-labeling bill will survive a vote in both houses of Congress.
As I discussed in my previous post about state GMO-labeling measures, these bills may run afoul of the Dormant Commerce Clause. The Dormant Commerce Clause is a principle that promotes national markets and prohibits state laws that discriminate against or burden interstate commerce.
One exception to the Dormant Commerce Clause is the "health and safety" exemption. This allows an otherwise discriminatory or burdensome provision to stand if the state legislature based its decision-making on its inherent power to protect the health and safety of its citizens. The drafters of the Vermont legislation, H. 112, appear to have written the GMO-labeling bill with this exception in mind.
If Vermont does pass such legislation in 2014, there is sure to be a lawsuit over the measure. When that happens, we will get to see whether the Dormant Commerce Clause will come out of hibernation.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.